WAGLAC will be meeting in San Diego on February 19th and 20th. In addition to the roundtable discussion, Eric M. Katz, Supervising Deputy Attorney General Natural Resources Law Section of the Office of California Attorney General will speak on California Surface and Groundwater: New Developments in the Sacramento-San Joaquin Delta and the Sustainable Groundwater Management Act (SGMA).

CWAG, as part of the NAAG Spring Meeting, will be meeting with acting Secretary of the Interior David Bernhardt. The Attorneys General typically ask WAGLAC for a list of current issues to discuss with the federal agency heads. Please send
Clive Strong at Clive.Strong@cwagweb.org a list of any issues you think should be discussed with the Department of Interior.

On January 17, Washington Attorney General Bob Ferguson announced his intent to sue the U.S. Navy over its recent decision to discharge the equivalent of “50 dump truck loads” of highly toxic pollutants into the Sinclair Inlet of the Puget Sound. AG Ferguson announced his intentions in an official letter addressed to Acting Defense Secretary Patrick Shanahan and Navy Secretary Richard Spencer. AG Ferguson gave the Navy 60 days to resolve the matter before he files suit.

The issue arose after the Navy scraped the hull of the decommissioned USS Independence —a 60,000 ton aircraft carrier—into the Sinclair Inlet in 2017. The EPA and the Washington State Department of Ecology both raised concerns over the Navy’s plan to scrape the hull prior to the Navy taking action, but their concerns were disregarded. The material waste from the hull contains a significant amount of copper and zinc, which are highly toxic to marine life, including the area’s salmon and orca populations. In his letter, AG Ferguson noted that the Navy’s actions violated federal and state laws, including the Clean Water Act and Resource Conservation and Recovery Act. Should the Navy fail to address the violations, AG Ferguson made clear that the state will move to intervene in a case initially brought by the Suquamish Tribe, the Puget Soundkeeper Alliance and the Washington Environmental Council in June 2017.

Colorado AG Phil Weiser and Michigan AG Dana Nessel Signal Major Shift in Their States’ Legal Direction, Withdraw from Lawsuit Against the Clean Power Plan

David J. Hayes, The State Energy & Environmental Impact Center

February 7, 2019

Newly elected attorneys general from Colorado and Michigan have already signaled that dramatic shifts on important environmental issues can be expected from their states in the years ahead. Both AGs opted to remove their states from ongoing litigation against the Clean Power Plan (
West Virginia, et. al. v. EPA) in January, and have made statements indicating more changes are yet to come. The Clean Power Plan is a groundbreaking plan to regulate emissions from power plants under the Clean Air Act, and it was one of President Obama’s signature climate change initiatives. The Clean Power Plan has been tied up in the federal court system for years following a legal challenge led in part by then-Oklahoma AG and former EPA Administrator Scott Pruitt.

Michigan Attorney General Dana Nessel filed a motion to withdraw Michigan from the anti-Clean Power Plan litigation on January 18, and she has subsequently withdrawn the state from four other cases challenging EPA environmental regulations. “Under my watch, Michigan will not be a party to lawsuits that challenge the reasonable regulations aimed at curbing climate change and protecting against exposure to mercury and other toxic substances,” said AG Nessel.

Colorado Attorney General Phil Weiser announced his decision to withdraw Colorado from the anti-Clean Power Plan litigation on January 30, telling the media that “instead, we’ll be on the side supporting [the Clean Power Plan].” AG Weiser also announced his intention to join two multi-state lawsuits against the Trump administration, including a multi-state lawsuit against the administration’s plan to roll back national Clean Car Standards, and a separate multi-state lawsuit in favor of states’ rights to impose higher fuel economy standards than the standards required by the federal government.

EPA Ices Effort to Regulate Snake, Columbia Rivers

The Seattle Times

February 6, 2019

A move to initiate state regulation of salmon-killing hot water in the Columbia and Snake rivers has been iced by the Trump Administration — for now.

The state Department of Ecology has initiated a public comment process on draft permits that would enable it to enforce state water-quality standards at federal dams, including temperature.

Recently, the U.S. Environmental Protection Agency wrote to the department to announce it is yanking the draft permits that were under review. That has the effect of stopping, at least for now, Ecology’s effort to enforce its water quality standards at federal dams for the first time.

On February 6, DOI and the Bureau of Reclamation (USBR) published a notice in the Federal Register (84 FR 2244) requesting input from the Governors of the seven Colorado River Basin States seeking specific recommendations to reduce the risks from drought on the Colorado River System. Input will be accepted for a 15-day period beginning March 4-19.

In response to declining reservoir storage, USBR and the Basin States have worked for several years across multiple administrations toward Drought Contingency Plans (DCPs), and made significant progress in 2018. “While unfinished, the Department takes particular cognizance of the fact that on January 31, 2019, the Arizona Legislature passed legislation authorizing the Arizona Department of Water Resources Director to execute the relevant interstate DCP agreements. Arizona is unique in the need for state legislative action to approve the DCPs, and this important step may indicate that finalization of the DCPs is imminent. While the Department supports the ongoing efforts of the Basin States and remains cautiously optimistic that the Basin States will successfully complete their efforts promptly in early 2019, the Department is highly concerned that continued delays regarding adoption of the DCPs inappropriately increases risk for all that rely on the waters of the Colorado River.”

USACE Chief R.D. James issued a memorandum on December 13, 2018, directing District Engineers to restrict the timeline for state review for CWA 401 certification to 60 days. States may request additional time, but the decision is entirely at the discretion of the District Engineer, and extensions may not be granted if requests are “based on workload or resource issues or that [states] do not have enough information to proceed.

The Corps current practice is to give states a full year to complete certification before the states will be deemed to have waived their authority due to inaction. Additionally, the memo asserts the Corps policy will be that timelines for state review will commence upon “receipt” of a “request for certification” (without defining those terms). Currently, the Corps generally does not consider the timeline for state review to have begun until the District Engineer verifies “that the [state] has received a valid request for certification.” 33 C.F.R. 325.2(ii).

“Western Governors request President Trump ‘reject any changes to agency rules, guidance, or policy that may diminish’ states’ authorities to protect water quality within their boundaries.

‘Western Governors are aware of reports that the White House is considering issuance of an executive order to address energy infrastructure development that may include provisions affecting the implementation of the state water quality certification program under Section 401 of the federal Clean Water Act (CWA),’ states the Jan. 31, 2019 letter signed by WGA Chair Hawaii Gov. David Ige and WGA Vice Chair North Dakota Gov. Doug Burgum.

‘We urge you to direct federal agencies to reject any changes to agency rules, guidance, or policy that may diminish, impair, or subordinate states’ well-established sovereign and statutory authorities to protect water quality within their boundaries,” the letter asserts.

The Governors also request that "any executive order (or corresponding federal action) aimed at improving or streamlining the state water quality certification program under CWA Section 401 should be informed by early, meaningful, substantive, and ongoing consultation with state officials’.”

Nevada Attorney General Aaron Ford announced that his office filed a motion in the federal District Court to prevent future shipments of weapons-grade plutonium into the State, pending an appeal to the Ninth Circuit.

The Motion comes on the heels of a shocking announcement by the U.S. Department of Energy that it had shipped one half-ton of weapons-grade plutonium into the State sometime last year. Earlier this week, AG Ford’s Office filed a Notice of Appeal to the Ninth Circuit, after the District Court denied a preliminary injunction to prevent shipments of plutonium by the U.S. Department of Energy. The office filed the motion requesting an injunction pending appeal to prohibit the U.S. Department of Energy from shipping any additional plutonium into Nevada.

In July 2014, California Governor Edmund G. Brown Jr., Un­dersecretary Rodolfo Lacy and General Director Jorge Res­cala Pérez of Mexico's Ministry of Environment and Natural Resources and its National Forestry Commission, respectively, signed the four-year Memorandum of Understand­ing (MOU) to Enhance Cooperation on Climate Change and the Environment. The purpose of the MOU is to strengthen the capacity of both governments to cope with the challenges of climate change and protect and preserve natural resources.

President Trump is picking David Bernhardt, a former energy lobbyist, to be the Interior Department’s next secretary.

Bernhardt, whose past clients include oil companies and others with business before the Interior Department, will lead an agency that oversees about 500 million acres as well as the energy production on that land.

He became the agency’s deputy secretary in 2017 and has led the department on an interim basis since former Secretary Ryan Zinke resigned.

Addressing Water Needs and Strategies for a Sustainable Future: Administration, Department of the Interior

Western States Water Law

February 8, 2019

David Bernhardt, Acting Secretary of the U.S. Department of the Interior (DOI), has appointed William Werkheiser as the Science Advisor to the Deputy Secretary where he will advise and coordinate activities on science issues affecting bureaus across the department. Mr. Werkheiser began his 30-year Federal career with the U.S. Geological Survey (USGS) as a scientist investigating issues ranging from the impacts of development on water supplies, the movement and fate of pollutants, and the effects of rising sea level on coastal aquifers. He has held a number of leadership positions, including USGS Deputy Director, Associate Director for Water, USGS Pennsylvania Water Science Center Director, and lead of the Natural Hazards Initiative leading the Hurricane Katrina Response and Recovery Team.

Bernhardt also announced that Alan Mikkelsen, Senior Advisor to the Secretary for Water and Western Resource Issues, will continue with an expanded portfolio that includes all departmental water issues. “Alan has decades of experience handling this subject, and recently he served as Deputy Commissioner of the Bureau of Reclamation,” Bernhardt stated. “He knows water as well as anyone.” Bernhardt added that Mikkelsen “will continue coordinating” with the Assistant Secretary for Water and Science, Tim Petty, as well as Brenda Burman, Commissioner of the Bureau of Reclamation, on “priority water matters.”

Over the past year, the federal government’s lead Supreme Court litigator has repeatedly attempted to expedite Trump administration cases by using an unorthodox maneuver, one that legal experts say is rarely successful.

Solicitor General Noel Francisco has requested on eight separate occasions, twice in the same case, that justices bypass a regional federal appeals court and instead review a ruling by a lower district court.

Those requests, known as petitions for a writ of certiorari before judgment, stemmed from challenges to President Trump’s restrictions on transgender people serving in the military, its decision to wind down the Deferred Action for Childhood Arrivals (DACA) program and its move to add a citizenship question to the 2020 census.

Court watchers say that in addition to being unusual, the strategy to leapfrog normal judicial order is aggressive and may undermine the solicitor general’s credibility with the justices. Legal scholars also fear that Francisco may be forcing the court to wade into political disputes before they are ready, a move that could make the public view the court as just another political institution.

Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.

The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to
Clay.Smith@cwagweb.org or
afriedman@cwagweb.org. The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or Andrea Friedman with any questions.

Updated American Indian Law Deskbook Is Now Available

The
American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.

CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.